Biden Administration Announces Long Covid-19 May Qualify as a Disability Under Federal Law

President Biden has confirmed that individuals experiencing lingering physical and psychological impairments from the coronavirus may qualify for the protections of the ADA. The Biden administration has declared that “long Covid-19” is not a presumptive disability. But employers will be required to make an individualized assessment to determine whether an employee’s lingering Covid-19 symptoms “substantially limit a major life activity.”

The U.S. Department of Health and Human Services and the U.S. Department of Justice have issued joint guidance that lists common symptoms of long Covid-19 that may substantially limit a major life activity in a way that would trigger the protections of the ADA. The federal government expects employers to make accommodations for these impairments as long as the accommodations do not place an undue hardship on the employer. Given the variety of symptoms and their potential impact on physical and mental activity, employers will have to take a careful approach to accommodations for these individuals.

Employment Arbitration Under Fire?

House Democrats have reintroduced the Restoring Justice For Workers Act, which would ban mandatory arbitration clauses that prevent workers from bringing employment bias, pay and other claims in court.

Louisiana  “Fair Chance” Law

Act No. 406/HB 707 (Act 406) took effect on August 1, 2021 and amends the Louisiana Employment Discrimination Law (LEDL). Act 406 applies to any employer in Louisiana, public or private, with 20 or more employees working in the state, that conducts background checks on candidates during the pre-hire process. In addition, Act 406 also limits the types of criminal history information an employer can permissibly consider and requires employers to provide candidates with copies of their background check reports upon request.

Maine Ban The Box Law

Maine’s new “An Act Relating to Fair Chance in Employment” became law on July 6, 2021, and goes into effect October 18, 2021. It prohibits employers from requesting an applicant’s criminal history on their initial employment applications. An employer may ask about an applicant’s criminal history during an interview or once the applicant has been determined qualified for the position.

WA State Expands Leave Law

Washington has expanded the term “family member” under its Paid Family and Medical Leave to include “any individual who regularly resides in the employee’s home or with whom the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care.” The term family member does not include a person who simply resides in the same home with no expectation that the employee care for the individual. Senate Bill 5097 took effect on July 25.

Originally, the term “family member” only included a child, parent, grandchild, grandparent, spouse, child’s spouse, state registered domestic partner of an employee, and a sibling.

Pittsburgh Enacts Another Emergency Paid Sick Leave Ordinance

Pittsburgh Mayor Bill Peduto has signed a new Temporary Covid-19 Emergency Paid Sick Leave Ordinance (626B) that requires employers with 50 or more employees to provide up to 80 hours of emergency paid sick leave to full-time employees (and a proportional amount to part-time employees) for certain Covid-19-related reasons. 626B is similar to Pittsburgh’s original Temporary Covid-19 Emergency Paid Sick Leave Ordinance (626A) that was in effect from Dec. 8, 2020, through June 17, 2021. 626B appears to require an entirely new bank of leave because it is a separate ordinance rather than an amendment to or extension of the original ordinance.

Among the key differences, 626B will remain in effect until at least July 27, 2022 and will not contain a one-week grace period to use leave after the public health emergency ends. A new qualifying reason for leave is the employee’s or family member’s need to obtain a vaccine or vaccine booster. Employers should review 626B carefully to ensure they understand their obligations. Employers with 499 or fewer U.S. employees also should examine whether, and to what extent, federal tax credits available through Sept. 30 might be available for leave they provide under 626B.

Written by: Gordon M. Berger, Partner

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